Commentary - Art. 29. Part III : Status and treatment of protected persons #Section I : Provisions common to the territories of the parties to the conflict and to occupied territories

ARTICLE 29. -- RESPONSIBILITIES

1. ' Responsibility of the State and of the individual '

Any breach of the law is bound to be committed by one or more individuals and it is normally they who must answer for their acts. Nevertheless, if the author of the act contrary to international law is an agent of the State, it is no longer his responsibility alone which is involved, but also that of the State, which must make good the damage and punish the offender. To the extent, however, that individual men and women acquire "international" rights and obligations and thus become "subject" to international law (as they do in connection with the laws and customs of war), so are they invested with the capacity of committing international offences, for which they personally may be held responsible, as well as the State to which they belong. The existence of this dual responsibility is reflected in the varying tone of the Article, which begins by declaring that the State is responsible and then goes on to make a reservation in regard to the [p.210] individual responsibilities which may incurred. The Convention thus shows clearly that two distinct responsibilities co-exist and emphasizes that they are not alternatives but supplementary to one other. The fact that the State has made good the damage caused in no way diminishes the responsibility of the author of the offence and vice versa. punishment of the offender does not relieve the State of its responsibility. the two forms of punishment for violations of the convention thus run parallel to each other, a fact the Diplomatic Conference wished to stress. Only the responsibility of the State will be dealt with here, as the question of individual responsibility is considered in Part IV in connection with Articles 146 and 147 (on penal sanctions).

2. ' Principle '

The principle of the responsibility of States implies an obligation on the Parties to the conflict to instruct their agents on their duties and their rights. They must take the greatest pains to ensure that the State services in contact with the protected persons are in actual fact capable of applying the provisions of the Convention. In that respect Article 29 is similar to Article 1 which , as has been seen, binds the Contracting Parties to respect and "ensure respect for" the Convention in all circumstances, and to Article 144 which stipulates that the text of the Convention is to be disseminated as widely as possible both in time of peace and in time of war. The principle of State responsibility further demands that a State whose agent has been guilty of an act in violation of the Convention, should be required to make reparation. This already followed from Article 3 of the Fourth Hague Convention of 1907 respecting the Laws and Customs of War on Land, which states that "a belligerent Party which violates the provisions of the said Regulations (The Hague Regulations) shall, if the case demands, be liable to pay compensation. It shall be responsible for all act committed by persons forming parts of its armed forces". Compensation for damage resulting from the unlawful act, although not stipulated explicitly, is undoubtedly implied by the authors of Article 29. Consequently, a State which bears responsibility for a violation of the Convention is in duty bound to make good the damage caused, either by restoring everything to the former condition ' (restitutio in integrum) ' or by paying damages, the choice resting, as a general rule, with the party entitled to reparation, that is, with the injured party. In many cases, however, reparation will have to be limited to the payment of damages, when the nature of the prejudice [p.211] caused makes restoration impossible and admits of no other form of compensation. An example of this would be the physical and mental injury suffered by protected persons who, despite the formal safeguards provided in the Convention, have been brutally treated while interned in enemy or occupied territory. It was not for the Convention to lay down rules concerning the procedure for applying this Article. The position is not the same as in the case o the individual liability to punishment of persons guilty of infringing clauses of the Convention. That is a comparatively new principle of the law of War, while here we are dealing with a chapter of international law in which there are numerous precedents. It is possible to refer, on the matter, to recognized rules embodied in the clauses of peace treaties, to provisions of statute law and tO awards in international arbitration. The safeguard contained in the present Article is reinforced by a provision in Article 148 relating to the responsibilities of the Contracting Parties, which may not absolve themselves of any liability incurred in respect of one of the grave breaches defined in Article 147 . One other point should be made clear. The Convention does not give individual men and women the right to claim compensation. The State is answerable to another contracting State and not to the individual. On that point the recognized system was not in any way modified in 1949.

3. ' Scope of the provision '

Article 29 defines by means of a general formula, the persons who can, by their acts, involve the State in responsibility: the State is only responsible in so far as the treatment contrary to the Convention is due to action by its "agents" (1). The term "agent" must be understood as embracing everyone who is in the service of a Contracting Party, no matter in what way or in what capacity. It included civil servants, judges, members of the armed forces, members of para-military police organizations, etc., and so covers a wider circle than the definition in the Fourth Hague Convention according to which the responsibility of the State could only be involved by "persons forming part of its armed forces". The term employed is more appropriate than any list of categories (2). On the other hand it embodies an essential reservation; for the word [p.212] "agent" limits the scope of the provision to those persons alone who owe allegiance to the Power concerned. In this it differs from the corresponding provision in the Stockholm Draft of 1948, where the general scope of the provision was emphasized by the use of the words "or on any other persons" at the end of the Article. The nationality of the agents does not affect the issue. That is of particular importance in occupied territories, as it means that the occupying authorities are responsible for acts committed by their locally recruited agents of the nationality of the occupied country. The position is just the same whether the agent has disregarded the Convention's provisions on the orders, or with the approval, of his superiors or has, on the contrary, exceeded his powers, but made use of his official standing to carry out the unlawful act. In both cases the State bears responsibility internationally in accordance with the general principles of law. The decision to limit the responsibility of the State to its agents was the subject of criticism at the Diplomatic Conference. Various delegations pointed out that an Occupying Power might have certain of its decisions carried out by the local authorities, or it might set up a puppet government, in order to throw responsibility for crimes, of which it was the instigator, upon authorities which were regarded as being independent of it (3). In order to remove this difficulty, it is necessary to disregard all formal criteria. It does not matter whether the person guilty of treatment contrary to the Convention is an agent of the Occupying Power or in the service of the occupied State; what is important is to know where the decision leading to the unlawful act was made, where the intention was formed and the order given. If the unlawful act was committed at the instigation of the Occupying Power, then the Occupying Power is responsible; if, on the other hand, it Was the result of a truly independent decision on the part of the local authorities, theOccupying Power cannot be held responsible. One other question arises. Will States have to answer not only for the actions of their agents, but for any acts in violation of the Convention, committed by their own subjects? The question is of importance, particularly for protected persons of enemy nationality living in the territory of a Party to the conflict, as they are liable to be a target for hostile demonstrations by the public. It was seen in discussing Article 27 that under the Convention protected persons are entitled to protection against all acts of violence or threats of violence and against insults and public curiosity. Generally [p.213] speaking, reference should be made in this matter to the principles of international law, which remain fully valid side by side with the Article under discussion. According to those general principles a State is not automatically responsible for the private actions of its nationals. It is responsible, however, if it has failed to give proof of the requisite diligence and attention in preventing the act contrary to the Convention and in tracking down, attesting and trying the guilty party. It must be remembered that the Contracting States have to disseminate the text of the Convention in peacetime in order to bring it to the knowledge not only of their agents, but of the whole population. That is laid down in formal terms in Article 144 .

Notes: (1) [(1) p.211] See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-A, pp. 642-643, 713-714 and 822;